| Bynum v Keber |
| 2016 NY Slip Op 00093 [135 AD3d 1066] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| Deborah Bynum, Individually and as Guardian of thePerson and Property of Heather Bynum, Respondent, v Brett Keber et al.,Appellants. |
Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of counsel),for appellants.
LaFave, Wein & Frament, PLLC, Guilderland (Jason A. Frament of counsel),for respondent.
Rose, J. Appeal from an order of the Supreme Court (Versaci, J.), entered January26, 2015 in Schenectady County, which, among other things, partially denied defendants'motion to dismiss the complaint.
Plaintiff's daughter, Heather Bynum, attended a music festival where she ingested aharmful substance and sustained significant injuries. Plaintiff then commenced thisaction in her individual capacity and on behalf of Bynum, asserting causes of actionalleging, among other things, negligence and fraud against defendants, the promoters ofthe festival.[FN*]Defendants filed a pre-answer motion to dismiss the complaint against defendants BrettKeber and Jonathan Fordin as improper parties, and against all defendants for failure tostate a cause of action. As relevant here, Supreme Court denied the motion, anddefendants now appeal.
[*2] Defendants contendthat plaintiff's first two causes of action sounding in negligence fail to sufficiently allegethat defendants owed a duty of care to Bynum. We cannot agree. In this proceduralcontext, we "accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,87-88 [1994]; accord Slezak vStewart's Shops Corp., 133 AD3d 1179, 1179 [2015]). " 'Whether theplaintiff will ultimately be successful in establishing those allegations is not part of thecalculus' " (Snyder vBrown Chiari, LLP, 116 AD3d 1116, 1117 [2014], quoting Landon v Kroll Lab. Specialists,Inc., 22 NY3d 1, 6 [2013]).
Mass gathering permittees, such as defendants, "have a common-law duty tominimize foreseeable dangers on their property, including the criminal acts of thirdparties" (Maheshwari v City ofNew York, 2 NY3d 288, 294 [2004]; accord Milton v I.B.P.O.E. of the World Forest City Lodge,#180, 121 AD3d 1391, 1391 [2014]; see Vetrone v Ha Di Corp., 22 AD3d 835, 838-839[2005]). "The scope of that duty is defined according to the likelihood that such behaviorwill occur and endanger [attendees] based on past experience" (O'Connor v Syracuse Univ., 66AD3d 1187, 1189 [2009], lv dismissed 14 NY3d 766 [2010] [citationsomitted]; see Crowningshield vProctor, 31 AD3d 1001, 1002 [2006]). Accepting as true plaintiff's allegationsthat defendants knew or should have known of the widespread presence and use ofillegal drugs at this annual festival, known as Camp Bisco, we find that plaintiff hasadequately stated a cause of action for negligence based on defendants' alleged failure toexercise reasonable care in curtailing the use of illegal drugs on the festival grounds.
As for plaintiff's separate cause of action for negligence based upon defendants'alleged failure to provide adequate onsite emergency medical services, defendants, asmass gathering permittees, had a clear duty to provide such services pursuant to the StateSanitary Code (see 10 NYCRR 7-4.3 [n]; 18.3 [b]; 18.4 [a]). According toplaintiff's allegations, defendants knew that Camp Bisco had increased in size every yearand that, in 2011, over 26,000 people were in attendance. Plaintiff further asserts that,despite their apparent knowledge, defendants circumvented their duty to provide theproper level of medical services at the festival by misrepresenting to the relevantpermitting authorities that the maximum attendance for the 2012 edition of Camp Biscoattended by Bynum would be just 12,000 people (see 10 NYCRR 18.4 [a] [1],[2]). Accepting plaintiff's further statement that defendants' provision of inadequatemedical services was a proximate cause of Bynum's injuries, we find that theseallegations state a cognizable theory of negligence as well (see e.g. Burgundy BasinInn v Watkins Glen Grand Prix Corp., 51 AD2d 140, 143-144 [1976]).
We do agree, however, with defendants' argument that plaintiff's fraud cause ofaction, which asserts that defendants misrepresented the anticipated attendance at CampBisco to the municipalities that issued the permits allowing the festival to take place, isnot sufficient to survive a motion to dismiss. In order to state a cause of action forfraudulent misrepresentation, a plaintiff must allege with particularity " 'amisrepresentation or a material omission of fact which was false and known to be falseby [the] defendant, made for the purpose of inducing the other party to rely upon it,justifiable reliance of the other party on the misrepresentation or material omission, andinjury' " (MandarinTrading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011], quoting LamaHolding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; see CPLR 3016[b]).
Here, plaintiff concedes that defendants never made any misrepresentationsregarding the estimated attendance at Camp Bisco to Bynum directly, which, ordinarily,is fatal to a claim of fraudulent misrepresentation (see Mandarin Trading Ltd. vWildenstein, 16 NY3d at 179-180). [*3]Contrary toplaintiff's contention, the third-party reliance doctrine is inapplicable to the facts of thiscase, as plaintiff does not allege that defendants' representations to the relevantpermitting authorities regarding the expected attendance at Camp Bisco were made "forthe purpose of being communicated to [Bynum]" or with the intent that suchrepresentations would "reach and influence [her]" (Eaton Cole & Burnham Co. vAvery, 83 NY 31, 35 [1880]; see Wildenstein v 5H&Co, Inc., 97 AD3d 488, 490[2012]; compare Buxton Mfg. Co. v Valiant Moving & Stor., 239 AD2d452, 453-454 [1997]; Desser v Schatz, 182 AD2d 478, 479-480 [1992]).
We also agree with defendants that Supreme Court should have dismissed thecomplaint in its entirety against Keber and Fordin, who are co-owners of defendant MCPPresents, LLC (see Limited Liability Company Law § 609 [a]).Plaintiff does not specifically allege any manner in which Fordin "participated in thecommission of a tort in furtherance of company business or to benefit the business" (Haire v Bonelli, 57 AD3d1354, 1357 [2008]; seeKew Gardens Hills Apt. Owners, Inc. v Horing Welikson & Rosen, P.C., 35AD3d 383, 386 [2006]). As for Keber, plaintiff asserts only that he personallyparticipated in the alleged fraudulent misrepresentation, a cause of action—as wehave said—that plaintiff has failed to state.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied defendants' motion todismiss (1) the entire complaint against defendant Brett Keber and defendant JonathanFordin, and (2) the third cause of action against the remaining defendants; motiongranted to that extent and said causes of action dismissed as to said respectivedefendants; and, as so modified, affirmed.
Footnote *:Plaintiff alsocommenced a separate action alleging negligence against, among others, themunicipalities that issued the permits allowing the festival to take place (Bynum vCamp Bisco, LLC, 135 AD3d —, 2016 NY Slip Op 00093 [2016] [decided herewith]).